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Novell Asks Court to Separate SCOsource Money
clusterix writes "Groklaw has posted Novell's answer to SCO's slander of title complaint. In it, Novell produces many counter claims. The most eye-catching is the claim for the revenue from the SCOsource licenses bought by Microsoft and Sun and others. Novell states that they must be SVRX licenses which entitles them to 95% of revenue in royalties. They further request a trust to be constructed to hold the revenue until the case is decided. It is hard to see how the judge could deny such a request to protect the money which will likely bankrupt SCO."
This is somewhat off topic; but does anyone know what the legal position over the brand/name "UNIX" will be? If SCO owns it and dies off will it become public domain? And can people legally say that Linux is a form of UNIX?
let the bets begin.
What does your Credit Report look like?
If they request the money be set aside, it'll force SCO to put it's money where it's legal mouth is.
Content Management System: A pretentious way of saying "text editor."
more likely he would require a "reserve against" account, which is a paper transaction, rather than a cash account.
I'd like to volunteer for the trust position if no-one else will
'For we walk by faith, not by sight.' II Corinthians 5:7
Get them all in a pay-per-view. I think the Google boys will win.
Charles Jo
smallest leg to stand on with these allegations SCO is toast. If the court freezes SCO's assets, up to at least 95% of the contracts with WS and Sun, there will be no money left to pay SCO's lawyers. BTW from another article, NOvell my have the right to dismiss SCO's suits agaist IBM and others, since they actually own the rights to the System V code.
No one here gets out alive
which will likely bankrupt SCO.
about time.
Seriously, how about we build one of those sound beaming devices from MIT and then follow Darl around with it?
We could laugh at him and make fun of his pathetic case while is strolling about in public.
Early on in the case, this would have been a huge big revelation; a sort of a... "Wait, you mean SCO is basing their entire future around denouncing UNIX license fees not being paid by people who aren't even using UNIX... yet SCO allegedly isn't paying the license fees for their real UNIX?"
...but now now we've gotten to the point where literally no amount of lying, theft or abuse on the part of SCO can surprise us, this little tidbit will slide right past the media as nothing but a footnote and a handful of slashdot comments.
Irritable, left-wing and possibly humorous bumper stickers and t-shirts
If they do go belly-up I can't see it being anything but a good thing. Novell comes out on top, the other lawsuits are moot since SCO no longer exists - and we never have to hear about this ***** again.
back when this whole thing started, sun was pretty anti-linux, and we all know microsoft loves linux. i think this was a grand conspiracy conducted jointly by microsoft and sun, and the method of payoff to sco was the licensing purchases that they made.
After the stunt SCO pulled earlier, I wish them all the worst.
Really.
After attacking the free, open source community they couldn't ask for anything else.
I mean, really. By claiming that stuff like "/* This is a test */" is a copyright infringement , they literally BEG for trouble.
Being an UNIX head as I am, I never thought I'd want a UNIX system dead, but right now: yes, I do. Die, SCO, die HARD!
After all, we've all been expecting it. Time for some bloodletting.
They only have to pay 2 million a quarter up to Dec 2005, they are free loading after that......
I think the SCO lawyers have already been paid all the cash they are going to get. And for any other work they do they get a % of the win.
Article here
Quality Hosting e3 Servers
In the absence of a fiduciary duty or fraud, it would be extraordinary for a court to award money in the absence of entering judgment. This is particularly so if it would cripple the grantor to the constructive trust.
Consider the fairness to previously existing creditors, including secured creditors, who believe they might have priority as to these assets, particularly if there is a risk of bankruptcy.
The response is simple. If you want to secure your assets in any credit scenario, negotiate advances or a security interest, and then seek such relief you may want in bankruptcy.
I would be very surprised to see the Judge do anything, regardless of his sympathies on the merits.
The real question on this story will be how much and when was information known. Did SCO fraud MS/Sun or where they partners in all this. If so, then they may end up be held liable by IBM/SEC.
In addition, with the fraudulent paper, it shows that SCO is willing to go to extraordinary lengths. I wonder if perhaps the 2 suicides should be investigated further? Mormons do not commit suicides and both were practicing.
I prefer the "u" in honour as it seems to be missing these days.
It's incredibly pedantic I know, but my understanding is they're entitled to 100% of the royalties ...
It's just that they then give 5% back to SCO to handle administration.
Novell does not, and did not ever claim to be entitled to only 95% of revenue on royalties.
Novell is entitled to 100% of royalties and remits 5% back to SCO as an admistrative fee.
See page 13 of Novell's answer and counterclaim.
http://www.groklaw.net/pdf/Novell-78.pdf
Novell Goes for SCO's Throat
As others have already mentioned, one of the many interesting things that came out in this filing was that SCO asked Novell to go in on the scam. Novell called it "scheme". Novell declined and SCO marched on.
It will be interesting to see how SCO management avoids jail time.
This has the potential of finishing off SCO for good. The way things have been going with this case, I don't have so much hope that will be the end, but if it could be, what a grand finale that would be! Not only will we have the satisfaction to see the litigious bastards go down, but more importantly, beautiful irony, the money Microsoft and Sun had invested in hurting Linux will end up in the pockets of a Linux champion! Talk about karma...
I code, therefore I am.
"And now we know Novell is a hero in this saga, and I am going out to buy the latest SUSE Linux this exact minute, even though I already have it. I hope you do too, even if you don't need it."
While I have my own other favorite distro, I think her example is a good one; and I for one intend on purchasing a copy as well.
The best way to predict the future is to create it. - Peter Drucker.
For falsely claiming SUN and MS revenus among other things Darl and gang face prison terms in addition to fines.
From Groklaw:
CEOs and CFOs of listed companies (like SCOX) face ten years in jail and $1m fines for a mistake in their reporting. Twenty years and $5m if it's a "willful" mistake.
See sections 302 and 906 of the Sarbanes-Oxley Act: here's the relevant bit of s.906:
(c) CRIMINAL PENALTIES.--Whoever--
(1) certifies any statement as set forth in subsections (a) and (b) of this section knowing that the periodic report accompanying the statement does not comport with all the requirements set forth in this section shall be fined not more than $1,000,000 or imprisoned not more than 10 years, or both; or
(2) willfully certifies any statement as set forth in subsections (a) and (b) of this section knowing that the periodic report accompanying the statement does not comport with all the requirements set forth in this section shall be fined not more than $5,000,000, or imprisoned not more than 20 years, or both.
This is truly the meat in the Novell case. They must know that NewSCO itself is small potatoes. Novell also mentions they rejected NewSCO's invitation to join in the SCOSource initiative because it sounded like a scheme.
I think Novell is now hoping discovery will reveal evidence that NewSCO approached Sun and MS with the same scheme offer prior to launching their war against Linux.
If Novell can show Sun or MS acting with some fraudulent intent (shakedown, FUD to keep Linux down, etc.) then just imagine how big the pot of gold at the end of that litigation rainbow would be.
In the end Novell may be the one laughing all the way to the bank as a result of the NewSCO fiasco.
They're done, done, done, stick a fork in 'em, they're DONE! (sfx: gavel BANG!)
It would be so cool if the final moments of the Smoking Crack Organization could happen on The People's Court. So we could actually hear Darl McBribe whimper and see him pee himself. In public. On camera.
Gotcha, you litigious bastard!
Knowledge is power. Knowledge shared is power multiplied.
Don't even bother razzing me about the unix->uniz typo. I touch type, and my left hand was in the wrong place. (It's my story, and I'm sticking to it).
Sometimes boldness is in fashion. Sometimes only the brave will be bold.
When companies go bankrupt, their assets generally get sold off...they don't automatically become public domain.
For that matter, one of the good arguments against the current state of Intellectual Property is the market confusion that results at the end of the life cycle of the company that owns the rights to a product or other published works.
On the pro-IP side. The whole point of IP in a capitalistic society is that IP allows people to borrow against IP as an asset. I imagine that bankruptcy courts want to maintain assets. As such I have a hard time imagining the Bankruptcy system declaring IP assets as public domain.
The bankruptcy of SCO will result in others buying up any IP owned by the company and doing whatever with it.
Novell asked for an Audit of SCO's SVRX licences in July 2003.
After asking for an initial 3-weeks delay, SCO still hasn't answered.
This is the very same SCO that was badgering Daimler-Chrysler for taking 30 days to answer an Audit they had not even received ???
Un-effing-believable!
Quick update: Big news. Novell has answered SCO's complaint and has filed some impressive counterclaims. Read the pdf here . Among other things, Novell alleges that SCO had repeatedly asked for Novell to transfer UNIX copyrights, and at the early stages, actually asked Novell to go in with SCO on the SCOSource program. In Novell's counterclaims, they specifically allege:
Some of what Novell is seeking seems to hit right to the heart of SCO's cash resources. The best example of such a tactic is a request by Novell to require SCO to put the money it received from Microsoft, Sun, and others (through SCO's "Intellectual Property Licenses with Linux end users and UNIX vendors") in a "constructive trust" until Novell's contract claims are decided. Unless they move to extend their time, SCO should respond to Novell's counterclaims by 22 Aug 2005.
Current events:
SCOvIBM: In the wake of the recent opinion issued by Judge Kimball, fact discovery will continue until 27 Jan 2006, and the parties must disclose with specificity all "allegedly infringing materials" by 22 Dec 2005. Redacted and unsealed motions are being rapidly released, with SCO finally joining in. The parties seem to be still consulting with each other on the privilege log issue. Finally, a fully briefed, completely sealed discovery motion awaits a ruling, though no hearing date is yet set.
SCOvNovell: Judge Kimball has denied Novell's motion to dismiss, and now Novell has answered SCO's complaint. On top of that, Novell has filed an impressive array of counterclaims . Alleging that SCO "asked Novell to assist SCO in a Linux licensing program, under which SCO contemplated extracting a license fee from Linux end users to use the UNIX intellectual property purportedly contained in Linux," Novell not only says that they refused, but indicate that these conversations demonstrate the SCO launched their storied lawsuits with knowledge that their ownership position in the UNIX System V copyrights was uncertain. Perhaps the most compelling request that Novell is presenting to the court is a request that income SCO received from Microsoft, Sun, and the "Intellectual Property Licenses with Linux end users and UNIX vendors" be put out of SCO's reach into a "constructive trust" until Novell's contract claims are decided. Other counterclaims call for relief relating to SCO's alleged slander of Novell's title to UNIX System V copyrights and declarative, injunctive, and monetary relief relating to SCO's alleged breaches of the contracts relating to the sale of Novell's UNIX business to Santa Cruz. Unless SCO is granted an extension of time, it should reply to these counterclaims by 22 Aug 2005.
RedHatvSCO: This case remains stayed. However, Judge Robinson indicated that if "it woul
Did they say they owned the trademark? I thought they said they owned the technology. Two different things.
"Who are in control, they are not in control of anything - they don't even control themselves!" - Glen Beck
Word of advice regarding groklaw: RTFA *and* the comments. The stuff is not as simple as it looks. It's a lot like debugging somebody else's code. Then come back when there is a new article, lather, rinse, repeat. I say this because there's a metric assload of wrong ideas and misinformation floating around about how this stuff works.
C|N>K
Faskinatin'.
Hit 'em with a twistker-punch.
On the flip-side, SCO would make a great target for the Justice Department - too puny and insignificant to have any real impact on business, too flat-broke on their existing lawsuits to mount much of a defence, good publicity for their anti-corruption efforts (!) for every executive they convict and good for some of the big-name US companies being hastled by SCO.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
Last seen wearing a blonde wig. CEO Darl McBride, was reported missing from his/her hotel room after a night on the town. He may have been kidnapped or just taken off the wig. Who cares?
Before I get a dozen posts saying "wtf are you saying Caldrea for" that was a typo.
You have to admit, given the trading and changing of names of the parties involved one can get mixed up pretty quickly. But I do know who I was talking about, really.
In some special cases the courts can go after money already paid. When you are in bankruptcy court there is a order of who gets paid, if you pay someone low on the list before filing bankruptcy, they can take that money back and give it to someone higher on the list to be paid.
I would be very surprised if this happened here, but it could. Lawyers are fairly high on the list of who gets paid.
S'CO!
that when this is all over, darl will blame the fanatical open source crowd for his company failing.
If you mod me down, I will become more powerful than you can imagine....
What you quote is from a comment, not from the
article itself. An important distinction. The articles
are fact checked. The comments might or might
not be.
That means we will have to depend on Merkey an Wallace for entertainment.
And for now both seem to be keeping their mouths shut.
I wonder if when this all pans out they make a finding that Sun & Microsoft put SCO up to all this nonsense.
Would not IBM etc. then be right to then sue Sun & Microsoft?
That would be quite an eye popping fall out.
threadeds blog
I see the whole situation as being similar to this sort of behaviour - Darl is given a company vehicle, drives it deliberately into a very solid wall and takes it to his brothers panel shop while the company foots the bill.
SCO is finished - those darn kids and that pesky penguin didn't stop it, and IBM didn't either, Darl killed it - but surely Darl can be dismissed and thrown in jail for perjury before it's over?
As for the Novell angle, I'm sure they are pissed off for someone selling something that Novell owns the rights to - of course they are going to take action. People who sell burned copies of TV programs get hit with surprisingly large penalties for selling stuff they don't own the rights to - Darl was doing the same on a larger scale with these SCOsource licences according to Novell.
They tried something stupid / possibly illegal and the linux community turned on them. IF IRC they were even warned not to do it for that very reason.
I believe that the arseload is one of the few metric measurements to be fully adopted in England. However, I'd say a metric arseload is around 1.312 imperial buttocksloads. Which is of cause 14 moutheloads, 84 earholeloads and 112 nostrilloads. Back when I was a boy you could get a 3 earholeloads of candy for one pound two shillings and eightpence. Life was simpler back then.
When Argumentum ad Hominem falls short, try Argumentum ad Matrem
>> Novell also mentions they rejected NewSCO's invitation to join in the SCOSource initiative because it sounded like a scheme. I think Novell is now hoping discovery will reveal evidence that NewSCO approached Sun and MS with the same scheme offer prior to launching their war against Linux.
This is actually a very good find. I am kicking myself for not seeing this earlier. It finally makes sense.
SCO tried to get Novell to join the Linux FUD scam. Novell had not bought Suse yet so they were not in the Linux game per se. They refused anyway. Then SCO and MS "conveniently" decided to buy some licences from SCO.
I can understand MS pulling these stunts. Teaming up with SCO to kill the penguin. But Sun getting in on the game? Sun has been trying so very hard to portray itself as a friend of opensource and Linux. McNealy even donned a penguin outfit and hopped around on the stage.
Little did we know that he was paying others to stab the penguin in the back at the same time.
All of a sudden I have a new found hate for Sun.
I hope Novell makes you pay a very high price for these shenanigans.
I now must buy a Novell Suse box and start recommending it to others.
evil and rude!
Hmm... Lets see here...
-newSCO administers all SysV licenses, collects fees and remits 100% to Novell
-Novell returns 5% to newSCO.
-newSCO is forbidden from creating new SysV licenses, or modifying existing licenses without Novell's approval. (and Novell gets veto power)
-newSCO enters into new licenses that appear to cover SysV material (allegedly in Linux), without Novell's approval.
-newSCO collects those fees and does NOT remit them to Novell.
Would we be in agreement that newSCO has some fiduciary responsibilities for existing contracts?
Are you saying that because newSCO ignored the contract to create new licenses they have no fiduciary duty to Novell on those licenses?
" Do you think SCO is finally sorry it started down this road? I'll bet the lawyers are, even if SCO isn't."
If I know anything about lawyers then the lawyers on both sides of this are so happy they are peeing their pants.
This comment reminds me of the idiocy of shareholders suing the company they own because the stock of the company dropped. Which is completely silly, since the stock is exactly what is supposed to represent ALL claims of shareholders vs. the company.
..
..
Maybe this is the fault of CEOs and the board, who get paid huge sums of money and so make it forgotten. But the board is not the company.
Now what has this to do with you, CaymanIslandCarpedie, complaining that Novell gets a first bite, not the shareholders? Well, quite simply, the company just acts as a front for the shareholders. It is the shareholders job to vote into office a board and thus a CEO who acts in their interest and does not bring them into the situation that they lose their assets.
Of course, small shareholders get my sympathy because their votes don't actually count, but they should have known what they are doing and did not need to hold the stock
This is not meant as an insult to the parent poster, I'm sure you are just trying to protect the little guy
I'm still trying to figure out what people mean by 'social skills' here.
is not unix.
end of story.
sum.zero
Why does Novell get "first bite" at the assets for "maybe" at the expense of 100% for sure creditors/shareholders?
Not speaking of the rest but between creditors and shareholder, creditors get first dibs. Once creditors are paid off shareholders get the rest, however as usually happens not all creditors get %100 of what they're owed. That's something shareholders give up for not having any liability, well they are liable but only for the amount that they invest.
FalconShould there be a Law?